On Andy Uba`s Latest Supreme Court Challenge

After the Supreme Court had onJune 14th, 2007
delivered its judgment on the tenure of Governor Peter Obi ofAnambra

State

, we believe that the state would now be left alone to develop and received its democracy dividends. However, the enemies of the state would not leave us alone. The sponsor of the election rigging in favor of PDP in April 2003, the kidnap of the Governor of the state in July 2003; the mayhem in November 2003; the chasing a chief executive of the state out of the road with retinue of mean-looking mobile policemen; the unlawful impeachment of a governor of the state et cetera is not yet done with his intentions to rule the state will nilly.

In his desperation to rule the state at all costs and by all means, Andy Uba and his camp will stop at nothing to destabilize the state and make it ungovernable and at the same time come to be governor of the state through the back door. Having used the federal government machinery called INEC, to disqualify and run out all opposition, he contested against himself and was crowned by INEC despite the fact that there was no election!

Alas, he found out that he has contested and ‘won' election to an office that was not vacant! That is the kernel of the Supreme Court judgment. Now for some reason, Andy Uba is out to contest the judgment. He wants the Supreme Court to re-consider its judgment. In other words, he wants the apex court to over-rule itself.

After Obi received judgment, some people including the well-learned in the legal profession and in fact have already written to voice their opposition to the Supreme Court assuming jurisdiction and ruling that Obi's tenure has not finished. They are of the opinion that it was an election petition issue which is the sole jurisdiction of the Election Petition Tribunal and the Court of Appeal and that the Supreme Court had no jurisdiction to entertain the matter. In my opinion, if Governor Obi's appeal to the apex court was for the election issue, then on that score, the apex court would be wrong to have assumed jurisdiction.

However, the kernel of Gov Obi's case to the Federal High Court all the way to the Supreme Court was the interpretation of Section 180 of the constitution with regards his tenure. The Federal High Court declined jurisdiction and so was the Federal Court of Appeal. However, the apex court in exercise of its powers under section 233(1) (2) b of the constitution assumed jurisdiction and ruled the Governor Obi's tenure.

According to the relevant section 233(1),

"The Supreme Court shall have jurisdiction, to the exclusion of any other court of law inNigeria

, to hear and determine appeals from the Court of Appeal.

Also sub-section (2) states that:

"An appeal shall lie from decisions of the Court of Appeal to the Supreme Court as of right in the following cases:-

(a) where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings before the court of Appeal;

(b) decisions in any civil or criminal proceedings on questions as to the interpretation or application of this Constitution…."

For the benefit of our discussion, section 233 (2) b gave the Supreme Court the power of interpretation of section 180 which was in dispute. The said section 180 deals with the tenure of a governor of the state.

In a previous article titled "Before the Court of Appeal Rules on Governor Peter Obi's Terms" published in Nigeriaworld on Wednesday, 16th May, 2006, I discussed in details the issues facing the Court of Appeal at the time. The Court of Appeal as I said declined jurisdiction, but the apex court allowed reason and common sense to prevail. I do not intend to repeat my submissions on that issue.

However, after the ruling of the Supreme Court and after many months of the ruling, the Uba camp is heading to apex court for the court to over-rule itself. It is important to note that while Peter Obi's appeal was pending in the Supreme Court, Andy Uba was sworn in as the governor with a caveat that if Obi finally wins the appeal, that Uba would be asked to leave. Uba was sworn in as governor and 2 weeks later, the Supreme Court delivered its historic judgment that gave Obi back his mandate.

But Andy Uba's camp argues that the Supreme Court removed him without following the process of removing a governor. According to his press secretary, Chuks Okunna:

"I also seized this opportunity to inform that legal experts have done extensive research and believe that the justices of the Supreme Court erred on this matter. Besides, the 1999 Constitution is clear on how a governor can be removed. And if a governor is removed outside the provisions of the constitution, any aggrieved person can challenge the development. We believe that the Supreme Court is the final court on any dispute and can review its verdict if it is discovered that it wrongly comes to a conclusion on a matter before it.

"This honorable court is humbly and respectfully prayed to examine the issues of lack of jurisdiction, incompetence raised under real likelihood of bias and the nature and manner of the orders made. Particularly the one slammed out of the blue on the applicant to vacate his office or Governor of Anambra State without offering him an opportunity to be heard on it. This honorable court is further urged to restore justice to the applicant on the ground that this application has sufficient merit by setting aside the judgment and orders delivered on14th June, 2007
, reasons for which were given on13th July, 2007
."

For people that are fair in their assessment of events in the state, it is not difficult to understand what is going on. But for outsiders, it is important that they know that technically, Andy Uba was never a Governor of Anambra state. The kernel of the Supreme Court judgment was that INEC conducted an election to an office that was never vacant! The governor of the state (Peter Obi) according to section 180 was yet to complete his tenure as he was sworn in onMarch 17th 2006
after a protracted legal battle against Dr Chris Ngige. Obi's term would end onthe 27th March 2010
.

The Supreme Court chastised INEC for not following due process and for knowing that there was a case whose outcome was likely to affect the election, but went ahead to conduct an election anyway. The court came down heavily on INEC for its recklessness in putting the contestants through a rigorous campaign when there was nothing to contest for. That is the main issue. It is not arguable who was governor, but Uba erroneously thought that Obi's term would end inMay 17 2007
. Andy Uba was never the governor of Anambra state judging from the ruling of the Supreme Court. Since he was never a governor of the state, as we cannot have too governors at the same time, the issue of removal should not arise.

Uba has also specifically raised objections to the inclusion of Justice P.O. Aderemi, who had earlier sat on the panel of the Court of Appeal, on the Supreme Court's panel. It could be recalled that Justice Aderemi was one of the justices that was said to have sat on the election appeal case between Chris Ngige and Peter Obi.

I do not doubt the fact that it contravenes the principle of fair hearing as enunciated by section 36 of the constitution in that there is a likelihood of bias if a judge had knowledge of the facts of a case and had previous decided that particular case in his capacity as an appellate court judge.

But the main issue facing the Supreme Court is whether the Supreme Court can overrule itself. Of course the supreme can overrule itself. However, the Supreme Court cannot overrule itself in the same case. The court is not allowed by the constitution to reconsider its stand on an issue concerning same parties and same subject matter over which it has already delivered a judgment.

The Supreme Court can only or rare cases entertain such cases if as it held in Igwe V Kalu:

* judgment is obtained by fraud or deceit either in the court or of one or more of the parties; or

* When the judgment is a nullity; or

* When it is obvious that the court was misled into giving judgment under a mistaken belief that the parties consented to it; or

* Where the judgment was given in the absence of jurisdiction; or

* Where the procedure adopted was such as to deprive the decision or judgment of the character of a legitimate adjudication.

None of these applies to the case involved. There was no fraud or deceit in obtaining the judgment that would go to the root of the case. As a matter of fact, the Supreme Court was satisfied that Peter Obi was the same person that stood in an election and that he was denied the benefit of his victory through rigging and that a court of competent jurisdiction had earlier decided that Obi was duly elected. The Supreme Court was also satisfied that Obi was sworn in onthe 17th March 2006
.

Also, Order 8 Rule 16 of the Supreme Court Rules provides:

"The Court shall not review any judgment once given and delivered by it save to correct any clerical mistake or some error arising from any accidental slip or omission, or to vary the judgment or order so as to give effect to its meaning or intention. A judgment or order shall not be varied when it correctly represents what the Court decided nor shall the operative and substantive part of it be varied and a different form substituted."

According to section 235 of the constitution:

"Without prejudice to the powers of the President or Governor of a state with respect to prerogative of mercy, no appeal shall lie to any other body or person from any determination of the Supreme Court."

This means that the Supreme Court has the final say in any matter as far as our legal system is concerned. Any person aggrieved with the court's decision has two options: appeal to God Almighty or suck it up.

The court can only overrule itself if subsequently it finds out that a previous decision was reached per incuriam (in error) or if the present social condition is such that a previous decision can no longer stand. In the past, the court overruled itself on several occasion. It overruled the decision it gave in a case between Abraham Adesanya and President of the Federation, Shehu Shagari, when it later ruled in another case between Gani Fawehinmi and Halillu Akilu. In both cases, Gani Fawehinmi was the counsel for the plaintiffs. He was the counsel to Adesanya and he also represented himself in the case against Akilu.

The bottom-line is that the court can only overrule itself when a similar issue presents itself in the future and the court is of the opinion that its previous decision could no longer stand. Moreover, in the Obi's tenure case, the Supreme Court's decision was unanimous. This means that every member of the panel of seven justices of the Supreme Court concurred to the judgment of the court. Not one member of the panel raised any objection to final judgment.

Our legal system does not make provision for the Supreme Court to re-consider its ruling in the same case whether unless there it falls under the test laid down in Igwe V. Kalu referred to above. Any person harboring the illusion that it is going to happen is either deceiving himself or trying to cause confusion.

One Ifeanyi Okonkwo, a party to the suit, has also filed a similar application before the Supreme Court. In the latter's case, he alleged that his name was struck out of the suit "fraudulently" after the governor offered him N10m bribe.

Also one Chukwujindu Okafor in Pointblank News on October 9, 2007 in arguing that Andy Uba has a strong case, stated that there was an emerging information which:

, CBN and his lawyer, Barrister Onyechi Ikpeazu have been holding series of meetings at which they have been mapping out strategies to blackmail and intimidate the Supreme Court Justices from considering the application filed by Dr. Uba…..Then, again, the question: is there any law stopping a citizen from appealing against an unsatisfactory judgment by the Supreme Court? Having studied the document of appeal tendered by Dr. Uba to the Supreme Court, one cannot help but concede to its soundness. I shall not comment on it beyond that because I am not dilettante's. I do not claim to be a lawyer; neither will I dorn the toga of a "legal analyst" or "observer"

This brings another dimension to the case. However, Mr Okafor, not being a lawyer as he said, but strongly believed in his layman's view that his master has a strong case after studying the document of the appeal. If eminent jurists like Prof. Itse Sagay, SAN, Olisa Agbakoba, SAN (President of the Nigerian bar Association) and the host of sound legal minds concluded that the Supreme Court cannot overrule itself, I wonder what made the Uba camp believe that it has a magic to make this happen, except if they can alter the constitution and make it have a retroactive effect. The law stopping a citizen from appealing against an unsatisfactory judgment of the Supreme Court is called section 235 of the Constitution of the Federal Republic of Nigeria. Despite what some misguided people believe that an individual can appeal to ECOWAS court if they are aggrieved by the Supreme Court ruling, our constitution does not give any other court anywhere in the world as a final arbiter over our Supreme Court.

I have to say that the issue of bribery raised in this case is a serious allegation against eminent individuals from Anambra state. I strongly support for the EFCC and ICPC to get to the root of this and find out what is the real position of things and prosecute anybody found liable of giving or receiving bribe. In a democracy which we have come to embrace, no individual is above the law no matter how highly placed.

But in trying to win by all cost, we should stop throwing wild accusations at respectable citizens of the state. These eminent citizens of the state still have a right under the law against anybody who tries to maliciously defame them. They still have the right under the law to sue anybody that maliciously tries to impugn their integrity.

One wonders why Chief Ifeanyi Okonkwo waited for 3 months to object to his name missing in the list of respondents in the Obi's Supreme Court appeal. Knowing full well that the court's decision would be final, why did he wait until the conclusion of the case to raise the issue that he received bribe from Obi's legal team. Also, what difference would his name missing from the list of respondent have made in the case? If not to cause confusion and to overcharge the polity in Anambra state with the agents of destruction; what else would be the explanation. Assuming the allegation of bribery is correct, why did he take N10m bribe from anybody for that matter if he really believes that his name in Obi's case would have swung the case in favor of Andy Uba. Also why didn't Uba attack the composition of the court at the time it was constituted?

There are differences of opinion as to whether the Supreme Court had jurisdiction to hear Obi's case. But the court having assumed jurisdiction and ruled in favor of Obi, many can only criticize the ruling but only a few fanatical supporters still believe that the case is reviewable.

When the Supreme Court gave its judgment in favor of Obi back inJune 14th, 2007
, Chief Gani Fawehinmi was the only visible senior advocate to argue that the decision reached by the Supreme Court was erroneous. Gani was convinced that the judgment was given without jurisdiction. One wonders why Uba and his team did not jump at that opportunity to brief the indefatigable Gani to represent him and make the case for the court to rescind its decision. To any reasonable person, Gani would have been his best shot at having the Supreme Court reverse its decision. Andy Uba has the resources to hire a high priced Fawehinmi to anchor that challenge.

The only logical conclusion for failure to go to Chief Fawehinmi is that Uba and his group knows that there is no merit is what they are trying to do. They are aware that Gani Fawehinmi being one of the most respected lawyers in the history of the legal profession inNigeria

would not be a party to bringing a frivolous and vexatious matter before the revered court. Furthermore, the other explanation for this is that Uba and his hatchet men once again are out to cause confusion and destabilize the state.

Another thing fishy in the way the whole thing is unfolding is that Chief Joe Aghimien (SAN), Andy Uba's lawyer in this challenge worked in Justice Samson Uwaifo's chambers before Uwaifo went to the Bench. Justice Uwaifo is the only retired justice of the Supreme Court to openly criticize his learned brothers of the bench. It is curious that of all the SANs in Uba's camp that met on the matter, all declined to represent him based on the fact that it will be making mockery of the judiciary. It was only Aghimien that took the challenge.

One should not be surprised that this is happening since Uba is following the footsteps of his master OBJ. We should not forget the case where the Federal Government under OBJ, unlawfully withheld theLagos

State

funds. The Supreme Court ruled it unconstitutional and ordered the federal government to return theLagos

State

funds. But OBJ could not believe it. He would be thinking "how dare you". He sent his lawyers to go back to the Supreme Court to re-consider it or as they said, "interpretation of that judgment" The Supreme Court declined to hear their application. We have seen this before from the lawless group of people that think that the country is in their pockets. Welcome to the era of the rule of law.

After all said and done, it comes to the same issue, which is that Andy Uba in his desperation to be the governor ofAnambra

State

at all cost and for PDP to fraudulently sweep the election, went and recruited Professor Maurice Iwu to be the INEC Chairman. As they say, who pays the piper dictates the tunes. Prof Iwu did Andy's bidding. Not minding the fact that there was no vacancy in the Anambra state governor's mansion, INEC went ahead to conduct an election despite the fact that there was a pending contentious case by Obi for a ruling on his tenure. If INEC had waited for the court to make a final determination on Obi's tenure case, it would have found out that there was no election to conduct as far as the governorship is concerned and thereby save candidates especially Andy Uba some headache of going through the whole process no matter how flawed only to find out that it was an exercise in futility. If INEC has listened, the human and material resources spent to conduct the election would not have been wasted. INEC's legal department did a very poor job and they should cover their faces in shame.

I am of the opinion that the aspirants to the election including Andy Uba of PDP and the host of other should not be left without a remedy. They should sue INEC for what it put them through. Even Dr. Chris Ngige of AC and Nicholas Ukachukwu of ANPP should also sue INEC for all they went through in the hands of INEC, because it was on the strength of its representation that the candidates even filed papers in the first place.

My advice is for Andy Uba who would be said to have suffered greatly from INEC's inefficiency, to sue the electoral body for compensation. It is a pitiful situation but one should not forget the law of retribution. Whatever evil you wish your fellow man returns to you in astounding accuracy. When Uba and his group were recommending an incompetent person for the country to run the election, what do they expect? It is quite ironical that the person they hired to ensure that Uba wins at all cost was the same person to ruin his chances of becoming governor. On the other hand, Uba must have thought that with all his connections atAbuja

and all his ill-gotten wealth would have swayed the Supreme Court to dismiss Obi's case. Moreover, who told Uba that the unlawful disqualification of Ngige and Ukachukwu by INEC would have stood the scrutiny of the court? Even if Obi's tenure was ruled by the Supreme Court to have expired onthe 27th May, 2007
; and Andy Uba's inauguration to stand, the Election tribunal would still boot him out since INEC should not lawfully disqualify the best candidates for the post.

The Supreme Court could not be said to have removed Uba from becoming the governor because he was not the governor in the first place. He was an impostor to the government house. The court was not the cause of his political woes but the INEC's incompetence or miscalculations. But like a proverbial chicken that left the knife that killed it but took its grouse with the pot, Andy Uba allowed Prof Iwu's INEC to go scot-free and is blaming the Supreme Court for his political misfortune.

Re: On Andy Uba`s Latest Supreme Court Challenge

Thanks for a well thought out piece. I think you should seek a space in our dailies to get more readership and spread this info. Chief Aghiemien is just out to cut a share of Uba's ill money. You are also missing something; Recall that the Election Petition Tribunal sitting in Awka has already nullified the Gubernatorial poll held in Anambra State. So even if the Supreme Court rules in his favour (a situation i strongly doubt) he can't go back to government House Awka. So Iwu is his achilles heel. Sorry Andy Uba. You are such a loser and FAILURE. Think of this caption;
ANDY UBA: A METAPHOR FOR FAILURE.

Re: On Andy Uba`s Latest Supreme Court Challenge

The only winner in this case is Andy's lawyer, Chief Aghiemien. He should advise Uba not to allow the Supreme Court's verdict be final. He should advise him to appeal to ECOWAS Court. If that is not enough, to Her Majesty, the Queen. By then, he would be able to get a ruling that will favour his return to Government House, Awka.

If you see a fool's leg and you cannot cut it, which wise man will allow you to cut his leg. I wish him good luck.